B-112145, JAN 7, 1953

B-112145, JAN 7, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL JAMES H. COMINGS, FC., USA:

THERE HAS BEEN RECEIVED BY FIRST INDORSEMENT OF OCTOBER 1, 1952, FROM THE OFFICE OF THE CHIEF OF FINANCE, YOUR LETTER DATED AUGUST 7, 1952, AND ENCLOSURES, TRANSMITTING A VOUCHER IN FAVOR OF COLONEL HARRY M. SCHWARZE, COVERING RETIRED PAY FOR THE MONTH OF JULY 1952, AND REQUESTING DECISION AS TO WHETHER PAYMENT THEREOF IS AUTHORIZED UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT COLONEL SCHWARZE WAS PLACED UPON THE RETIRED LIST OF THE ARMY EFFECTIVE JUNE 30, 1952, ON THE BASIS OF HIS OWN APPLICATION AFTER COMPLETION OF OVER 30 YEARS' SERVICE, PURSUANT TO THE PROVISIONS OF SECTION 1243, REVISED STATUTES, 10 U.S.C. 943. IT FURTHER APPEARS THAT THE OFFICER'S APPLICATION FOR RETIREMENT WAS NOT SPECIALLY APPROVED BY THE SECRETARY OF DEFENSE, IT BEING POINTED OUT IN THAT CONNECTION THAT SINCE COLONEL SCHWARZE HAD ACTIVE MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, HIS RETIREMENT UPON HIS OWN APPLICATION WAS REQUIRED BY LAW (10 U.S.C. 971B). HOWEVER, IN VIEW OF THE PROVISIONS RESPECTING PAYMENT OF RETIRED PAY CONTAINED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, PUBLIC LAW 488, 82D CONGRESS, APPROVED JULY 10, 1952, 66 STAT. 518, AND SINCE COLONEL SCHWARZE'S APPLICATION FOR RETIREMENT WAS NOT APPROVED BY THE SECRETARY OF DEFENSE IN THE MANNER INDICATED IN SUCH PROVISIONS, THE QUESTION IS PRESENTED AS TO WHETHER THE SUBJECT OFFICER PROPERLY MAY BE PAID RETIRED PAY, BEGINNING WITH THE MONTH OF JULY 1952, FROM THE FUNDS APPROPRIATED FOR THE DEPARTMENT OF DEFENSE FOR THE FISCAL YEAR 1953.

UNDER THE HEADING "RETIRED PAY," THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, SUPRA, CONTAINS IN TITLE II THEREOF THE FOLLOWING PROVISO:

"*** THAT NO PART OF SUCH SUM SHALL BE USED TO PAY THE RETIRED OR RETIREMENT PAY OF ANY COMMISSIONED MEMBER OF THE REGULAR ARMY, NAVY, MARINE CORPS, OR AIR FORCE WHO IS VOLUNTARILY RETIRED AFTER THE DATE OF ENACTMENT OF THIS ACT, UNLESS SUCH MEMBER WAS RETIRED BECAUSE OF (1) BEING UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, OR (2) ACHIEVING THE AGE AT WHICH RETIREMENT IS REQUIRED BY LAW, OR (3) WHOSE APPLICATION IS APPROVED IN WRITING BY THE SECRETARY OF DEFENSE STATING THAT THE RETIREMENT IS IN THE BEST INTERESTS OF THE SERVICE, OR, IS REQUIRED TO AVOID CASES OF INDIVIDUAL HARDSHIP."

AN IDENTICAL PROVISION WAS ENACTED IN TITLE II OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, APPROVED OCTOBER 18, 1951, 65 STAT. 424. IN DECISION DATED NOVEMBER 4, 1952, B-111933, TO THE SECRETARY OF THE NAVY, COPY HEREWITH, THIS OFFICE WITH RESPECT TO THE SAID STATUTORY PROVISIONS HELD THAT "*** IT SEEMS CLEAR THAT THE CONGRESS INTENDED AND THE DEPARTMENT OF DEFENSE UNDERSTOOD THAT SO LONG AS THE PROVISO SHOULD BE REPEATED IN ANNUAL APPROPRIATION ACTS FOR THE PAYMENT OF RETIRED PAY, SUCH PROVISION WOULD PRECLUDE THE PAYMENT OF RETIRED PAY IN THOSE CASES OF VOLUNTARY RETIREMENTS THEREIN SPECIFIED WHICH MIGHT BE EFFECTED AFTER THE DATE ON WHICH THE PROVISO FIRST BECAME EFFECTIVE, THAT IS, AFTER OCTOBER 18, 1951."

IT WAS FURTHER POINTED OUT IN THE SAID DECISION THAT TO CONCLUDE THAT THE RESTRICTION IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1953 IS APPLICABLE ONLY IN THE CASE OF VOLUNTARY RETIREMENTS EFFECTED AFTER THE DATE OF ENACTMENT OF THAT ACT - JULY 10, 1952 - WOULD PERMIT THE PAYMENT OF RETIRED PAY EFFECTIVE JULY 1, 1952, TO AN OFFICER VOLUNTARILY RETIRED ON THAT DATE AS WELL AS TO OFFICERS VOLUNTARILY RETIRED DURING THE PERIOD OCTOBER 18, 1951, TO JUNE 30, 1952; THAT, IF THE PROVISO IS CONTINUED IN SUBSEQUENT APPROPRIATION ACTS DURING THE EMERGENCY, THE VOLUNTARY RETIREMENT OF OFFICERS COULD BE MADE EFFECTIVE ON JULY 1, SO AS NOT TO DEPRIVE AN OFFICER OF RETIRED PAY FOR EVEN ONE MONTH (ASSUMING THAT THE ANNUAL APPROPRIATION ACTS ARE NOT ENACTED UNTIL AFTER COMMENCEMENT OF THE FISCAL YEAR FOR WHICH MADE, AS HAS BEEN THE CASE IN RECENT YEARS) THUS COMPLETELY NULLIFYING THE RESTRICTION; AND THAT THIS OFFICE WOULD NOT BE WARRANTED IN REACHING SUCH A CONCLUSION IN THE ABSENCE OF A CLEAR EXPRESSION BY THE CONGRESS OF SUCH AN INTENTION. INASMUCH AS THE OBVIOUS PURPOSE OF THE PROVISION IS TO DISCOURAGE PHYSICALLY FIT OFFICERS FROM VOLUNTARILY RETIRING DURING THE PRESENT STATE OF EMERGENCY AND IN VIEW OF THE LEGISLATIVE HISTORY QUOTED IN PERTINENT PART IN THE DECISION OF NOVEMBER 4, 1952, IT WAS CONCLUDED "THAT THE CONGRESS INTENDED THE PROVISO IN THE 1953 APPROPRIATION TO BE READ IN CONJUNCTION WITH THE IDENTICAL PROVISO IN THE 1952 APPROPRIATION AS EFFECTING A CONTINUATION OF THE PRIOR RESTRICTION FOR AT LEAST ONE MORE FISCAL YEAR."

SINCE COLONEL SCHWARZE WAS VOLUNTARILY RETIRED UPON HIS OWN APPLICATION AND WAS NOT RETIRED BECAUSE OF BEING UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE OR RATING BY REASON OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, OR BECAUSE HE HAD ACHIEVED THE AGE AT WHICH RETIREMENT IS REQUIRED BY LAW, AND SINCE HIS APPLICATION FOR RETIREMENT WAS NOT SPECIALLY APPROVED BY THE SECRETARY OF DEFENSE SO AS TO BRING IT WITHIN THE THIRD CLASS OF EXCEPTED CASES AS DESCRIBED IN THE ABOVE-QUOTED PROVISO, THE RETIREMENT MUST BE CONSIDERED AS WITHIN THE RESTRICTION OF SUCH PROVISO AND, ACCORDINGLY, THE PAYMENT OF RETIRED PAY TO COLONEL SCHWARZE FROM THE FUNDS APPROPRIATED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, MAY NOT BE AUTHORIZED. THE VOUCHER RECEIVED WITH YOUR LETTER IS RETAINED IN THIS OFFICE.